CITATION: Ferns v Commissioner of Corrective Services, Department of Corrective Services [2007] NSWADT 298 DIVISION: General Division APPLICANT Helen Ferns on behalf of Craig Ferns PARTIES: RESPONDENT Commissioner of Corrective Services, Department of Corrective Services FILE NUMBER: 063295 HEARING DATES: 16 March 2007, 5 July 2007 SUBMISSIONS CLOSED: 13 July 2007 DATE OF DECISION: 18 December 2007 BEFORE: Higgins S - Judicial Member CATCHWORDS: access to documents - adequacy of search MATTER FOR DECISION: Principal matter LEGISLATION CITED : Freedom of Information Act 1989 Freedom of Information Act 1982 (Cth) Shepherd & Department of Housing, Local Government & Planning [1994] QICmr 7 (18 April 1994); (1994) 1 QAR 464 Cianfrano v Director-General, Attorney General's Department [2007] NSWADT 8 Dezfouli v Department of Corrective Services [2007] NSWADT 25 Cianfrano v Director-General, Department of Commerce & Anor [2006] NSWADT 195 Curtin v Vice-Chancellor, University of New South Wales (No.2) [2006] NSWADT 56O CASES CITED: Hara v North Sydney Council [2005] NSWADT 100 Chapman v Commissioner of Police, NSW Police [2004] NSWADT 35 Patsalis v Commissioner of Police, NSW Police Service [2003] NSWADT 213 DQ v Commissioner of Police, NSW Police Service [2002] NSWADT 215 Chu v Telstra Corporation Ltd [2005] FCA 1730 Miriani v Commissioner of NSW Police [2005] NSWADT 187 R Reitano, barrister REPRESENTATION: T Anderson, barrister ORDERS: The tribunal orders that the decision of the Department in so far as it was deemed to have refused access to documents falling within category 3 of Mr Ferns FOI request is set aside and remitted for reconsideration in accordance with the findings and recommendations of the tribunal. REASONS FOR DECISION Introduction 1 This is an application by Mr Ferns, made through his agent, his mother Mrs Ferns, seeking review of a decision of the Department pursuant to the Freedom of Information Act 1989 ('the FOI Act') in regard to a request by Mr Ferns for access to 3 categories of documents. The documents in question concerned Mr Ferns employment with the Department as a correctional officer. 2 The Department initially determined that it only held one document falling within Mr Ferns' request. This was the document falling within the second category of documents requested and the Department determined to grant Mr Ferns access to it. The Department otherwise determined that it did not hold any documents coming within the terms of the first and second categories of documents for which Mr Ferns had sought access. 3 Mr Ferns made an application for internal review on the basis that there must be other documents held by the Department which came within the terms of his FOI request. On internal review, the Department identified three additional one page documents which fell within the first category of documents Mr Ferns had requested access to. The Department determined to grant Mr Ferns access to these documents and again stated that it held no further documents relating to the FOI request. 4 Mr Ferns being dissatisfied with the determination of the respondent lodged an application with the tribunal on 8 August 2006. Subsequent to lodging that application, on 17 September 2006, Mrs Ferns wrote to Mrs Margaret Parmeter, Director of the Employment and Administrative Law Branch of the Department, advising her that she had located a document, dated 1 March 2004, from Mr Keith Bennett, Staff Officer, Silverwater, of the Department to Mr Ferns, which Mrs Ferns asserted came within the terms of the third category of documents requested by Mr Ferns. This letter made reference to two letters written by Mr Ferns. The first letter was a letter dated 16 February 2004 regarding his 'employment/career' and the other letter was dated 18 February 2004 regarding Mr Ferns request to undertake secondary employment. These letters fell within the 1st category of documents requested by Mr Ferns. In his letter to Mr Ferns, Keith Bennett states that both letters from Mr Ferns were sent to the Employment and Administrative Law Branch of the Department for action. And the inference which Mr Ferns sought to draw from this letter was that there were further documents created as a result of his letters of 16 and 18 February 2004 being referred by Mr Bennett to the Employment and Administrative Law Branch and it was these documents which fell within category 3 of his FOI request and for which access had been refused. Issues 5 The issues in this application relate to the adequacy of search by the Department for documents it held falling within the terms of the third category of documents requested by Mr Ferns. Such a failure, if established, is a determination under s.24(2) of the FOI Act; namely a deemed determination to refuse access to the documents requested and held by the Department. 6 In determining whether there has been adequate search for documents the tribunal has consistently followed the approach of the Information Commissioner of Queensland in Shepherd & Department of Housing, Local Government & Planning [1994] QICmr 7 (18 April 1994); (1994) 1 QAR 464 at [19]: That approach is as follows: (a) whether there are reasonable grounds to believe that the requested documents exist and are documents of the agency; and if so, (b) whether the search effort made by the agency to locate such documents have been reasonable in all the circumstances of a particular case. see Cianfrano v Director-General, Attorney General's Department [2007] NSWADT 8 at [47]; Dezfouli v Department of Corrective Services [2007] NSWADT 25; Cianfrano v Director-General, Department of Commerce & Anor [2006] NSWADT 195 at [69]; Curtin v Vice-Chancellor, University of New South Wales (No.2) [2006] NSWADT 56 at [4]; O'Hara v North Sydney Council [2005] NSWADT 100 at [11]; Chapman v Commissioner of Police, NSW Police [2004] NSWADT 35 at [14]; Patsalis v Commissioner of Police, NSW Police Service [2003] NSWADT 213 at [52] and DQ v Commissioner of Police, NSW Police Service [2002] NSWADT 215 at [8]. Applicable legal principles 7 In regard to the first limb of the approach set out in Shepherd, the President, His Honour Judge O'Connor, said in Cianfrano v Director-General, Department of Commerce (supra) at [69] that when an applicant contends that an agency has failed to perform a sufficient search, the applicant must first and foremost put some credible material or submissions before the tribunal that documents of the kind requested exist. That is, it is not enough for the applicant to merely assert non-compliance on the basis of a general distrust of the agency. In this application the Department conceded that Mr Ferns had met this threshold test but contended that all reasonable searches had been made to locate relevant documents and none have been found. It also contended that no documents were created that fell within the third category of documents requested. 8 In Miriani v Commissioner of NSW Police [2005] NSWADT 187 at [30] the President set out factors that are relevant to assessing whether a sufficient search had been carried out. These factors included the clarity of the request, the nature of the agency's record keeping system and its ability to retrieve documents that are the subject of the request through that system (i.e. through identifiers supplied by the applicant or those that can be inferred reasonably by the agency from any other information supplied by the applicant). The President went on to stress that what will constitute a sufficient search will vary depending on the circumstances. 9 In Cianfrano v Director-General, Department of Commerce (supra) at [65] the President said that in determining whether reasonable searches had occurred for the documents in question, the tribunal must be satisfied that an agency's determination was a fully responsive determination. The fact that there are weaknesses in an agency's searches due to a failure in its record keeping processes do not necessarily lead to the conclusion that a search had not been reasonable, or sufficient, or adequate: see Patsalis (supra) at [61]. On the other hand, in Chu v Telstra Corporation Ltd [2005] FCA 1730 at [35], Finn J of the Federal Court said with regard to s.24A of the Commonwealth Freedom of Information Act 1974 (which has an express provision in regard to an agency taking all reasonable steps to locate documents) that it was not meant to be a refuge for the disordered and the disorganised. Are there reasonable grounds to believe that the requested documents exist and they are documents of the agency? 10 The documents requested by Mr Ferns were as follows: 1) All documents attached to the facsimile transmission cover sheet that Mr Keith Bennett, Staff Officer, Silverwater, sent to Ms Margaret Parmeter on 20 February 2004. 2) All minutes of the Professional Conduct Management Committee (PCMC) for the period 18 February 2004 until 10 April 2004 where any matter related to Craig Ferns was dealt with. 3) All documents, memoranda, reports, notes, records, diary entries, film and any other written material including records stored in computerised form that: (i) were created from the document identified in point 1 above were passed to Commander Brian Kelly, Security and Investigations Unit, by the PCMC and/or the Employment and Administrative Law branch; (ii) were created if and when Commander Brian Kelly passed the documents identified in Point 1 above to any other Departmental Officer; (iii) were created by Commander Brian Kelly or any other Departmental Officer in response to (1) above. 11 As mentioned above in [4] the two letters of Mr Ferns dated 16 and 18 February 2004 to which Mr Bennett refers in his letter to Mr Ferns on 1 March 2004, were documents falling within the first category of documents requested. In the third category of documents Mr Ferns sought access to documents which were created as result of his letters. At the time Mr Ferns was involved in an industrial dispute with the Department. In the 1 March 2004 letter, Mr Bennett informed Mr Ferns that his letters had been forwarded to the Employment and Administrative Law Branch and that he had been subsequently advised by the Branch that his letter of 16 February 2004 had been referred to Commander Kelly of the Security and Investigation Branch. In his letter of 16 February 2004, Mr Ferns had requested that he be returned to the Drug Dog Detection Unit of the Department, over which Commander Kelly had overall responsibility. 12 One would normally expect that where a letter such as this letter was referred to another section within the Department it would be referred under the cover of a memorandum, note, or some other form of notification and that Commander Kelly would have actioned it in some way and a record of that action would also have been recorded in some form. 13 In regard to the 18 February 2004 letter from Mr Ferns this was a letter in which Mr Ferns sought approval for secondary employment with the NSW Fire Brigade. In his letter of 1 March 2004, Mr Bennett advised Mr Ferns that his original request for secondary employment, dated 21 January 2003, had been declined and on that basis he was required to submit a fresh request for approval of secondary employment and that the request was to be submitted using the approved Departmental form for such requests. There is no evidence before thew tribunal of Mr Ferns having made such a request. The inference to be drawn from the advice of Mr Bennett is that no further action was taken in regard to Mr Ferns' application for secondary employment and therefore no further documents were created in this regard. 14 For the reasons set out above, there is an inference to support a finding that there are reasonable grounds to believe that the requested documents in so far as they relate to Mr Ferns request to return to the Drug Dog Detection Unit do exist and that they are held by the Department. However, this inference must be considered in the context of the evidence put before the tribunal by the Department in this regard. 15 This evidence was given by Ms Allisar Katrib, solicitor, of the Employment and Administrative Law Branch of the Department. Ms Katrib had no direct knowledge of the receipt of Mr Bennett's facsimile of 20 February 2004 to Ms Parmeter or the events, if any, that followed as she was not employed by the Department at that time. However, she gave evidence to the following effect: (a) documents of the nature requested by Mr Ferns would normally be found in files held at the Security and Intelligence Division at the Silverwater complex. She explained that in 2004, this particular Division was known as the Security and Investigation Branch. She also said that as the Department was involved in legal proceedings with Mr Ferns at the time in the Industrial Relations Commission of NSW, the documents requested could also have been held in the files of the Employment and Administrative Law Branch, who were acting on behalf of the Department in regard to those proceedings; (b) on 8 February 2007, she spoke to Ms Ball, who was the Director of the Employment and Administrative Law Branch in 2004 and that Ms Ball had informed her that she would have been responsible for forwarding the documents to Commander Kelly and that she did not recollect forwarding any such documents to him. Furthermore, she informed Ms Katrib that she had "reached the conclusion that no documents had been created" as she could not find any documents in Mr Ferns' file held in the Employment and Administrative Law Branch which indicated to her that the documents sent by Mr Bennett on 20 February 2004 had in fact not been forwarded to Commander Kelly; (c) Ms Katrib had not spoken to Commander Kelly to ascertain whether he recollected receiving from the Employment and Administrative Law Branch any documents relating to Mr Ferns' request to return to the Drug Dog Detection Unit or whether he or any officer of his then Branch had created any documents in regard to Mr Ferns request or matters arising from the relevant PCMC minutes.. 16 In my opinion, in light of the onus being on the Department (see s.61 of the FOI Act), this evidence, not being direct evidence, is not sufficient to displace the inference that there are reasonable grounds to believe that documents concerning Mr Ferns request to be returned to the Drug Dog Detection Unit exist and that they are documents of the Department. Were the search efforts made by the Department to locate the documents reasonable in all the circumstances? 17 In her statement of 24 November 2006, Ms Katrib also explained what searches had been conducted to locate relevant documents. These she said were as follows: (a) searches were initially conducted by Ms Elizabeth Ball, Acting Director of the Branch on about 29 March 2006. A further search was conducted by Ms Lee Nicholson of the Correction Intelligence Group on or about 18 April 2006. She searched files relating to Mr Ferns held at the Security and Intelligence building. These searches resulted in 4 relevant documents being identified, 3 were located in files held by the Employment and Administrative Law Branch, however Mr Ferns was unintentionally only provided with the other document in the initial determination. The other documents were provided on internal review; (b) additional searches were conducted in May 2006 of the file relating to Mr Ferns in the Employment and Administrative Law Branch and Mr Bennett was requested to conduct a search of any files he had in his custody as Staff Officer at Silverwater Correctional Centre. No further documents were located as a result of these searches; (c) on 22 November 2006, Mr Katrib conducted a further search of the files relating to Mr Ferns that were held in the Employment and Administrative Law Branch. She conducted this search by looking through each file and was unable to locate any further documents that came within Mr Ferns request; (d) on 22 November 2006 Ms Katrib requested Ms Rebecca Sallit of the Security and Intelligence Division to conduct a further search of the files relating to Mr Ferns. Later on the same day Ms Sallit advised Ms Katrib that she could not locate any documents created by or referred to Commander Kelly that related to Mr Ferns. In her oral evidence, Ms Katrib acknowledged that her request to Ms Sallit was an oral one and that she did not ask her any questions as to how she had conducted her search or what she had in fact searched for. 18 During her oral evidence, Ms Katrib explained that the Employment and Administrative Law Branch retains its documents in manilla folders. These folders are given a file number and that file numbers are allocated to the folders by the Central Record systems of the Department. During cross-examination she was unable to identify the number of files, the file numbers on those files or the titles of the files relating to Mr Ferns which she had examined. She also acknowledged that in her conversation with Ms Ball, Ms Ball did not say which files she had examined. She was unable to identify which files Mr Bennett examined or whether Mr Bennett had made a note of his findings. She explained that Mr Bennett was still employed by the Department and that she had spoken to him and recorded their conversation in a file note. She said she had referred Mr Bennett to the facsimile he had sent to Mr Ferns on 1 March 2004 and asked if he recollected whether he had sent any correspondence to Commander Kelly. She said Mr Bennett's response was that he could not recollect. Ms Katrib also said she had no knowledge of which files Ms Nicholson had searched. 19 At the conclusion of the hearing on 16 March 2007, I made orders to the effect that the Department file additional evidence in regard to the searches conducted by Ms Katrib, Ms Sallit of the Security and Intelligence Division and Mr Bennett and any other relevant material in regard to the requested documents. 20 I made this order as I was not satisfied that the Department had provided sufficient information to ascertain whether the search efforts made by the Department were adequate. No such additional evidence was filed and when the matter came back before the tribunal, on 5 July 2007, Ms Anderson, counsel for the Department, said that the Department did not propose to put on any further evidence and would rely on the evidence that had already been filed and given by Ms Katrib on the previous occasion. A transcript of the hearing on the previous occasions was provided to the tribunal by Mrs Ferns. It was not an official transcript but one that had been prepared by Mrs Ferns and I made orders to the effect that the Department was to file and serve any objections it had in respect of the transcript by 13 July 2007. As no objections were filed, I have accepted the transcript as being a correct record of the evidence given by Ms Katrib during the course of the hearing on 16 March 2007. 21 I found Ms Katrib to be a truthful witness and I am satisfied from her evidence that her search efforts of the files relating to Mr Ferns, held in the Employment and Administrative Law Branch in regard to the documents requested by Mr Ferns was reasonable in the circumstances. That is, notwithstanding Ms Katrib's ability to recollect file numbers etc. I do accept her evidence that she examined each of the relevant files held in the Branch. Had relevant files been identified, even if only in the number of files, in the Department's determination and in the evidence of Ms Katrib, Mr Ferns may not have so readily found that he was aggrieved by the Department's determination of his FOI request. 22 I am not however satisfied that the search efforts made in regard to files held in the Security and Intelligence Division were reasonable in the circumstances. That is, I find that the Department's response to Mr Ferns' FOI request was not fully responsive as I am not satisfied that the search efforts made of the files relating to Mr Ferns in the Security and Intelligence Division have been reasonable in the circumstances. Secondary evidence of searches that were made without any details of the record keeping system of that Division and what files were in fact searched does not in my opinion discharge the Department's onus under s.61 of the FOI Act. This search should be conducted by an appropriate officer in accordance with any direction given by the Commissioner pursuant to s.18 of the FOI Act and appropriately recorded in a form that may be disclosed to Mr Ferns. That officer should also approach Commander Kelly as to his recollections in regard to receiving Mr Ferns' letter of 16 February 2004 and documents created by him or his direction as a result thereof. Conclusion 23 For the reasons set out above, I find that the Department's decision of a deemed refusal to grant access to the documents for which access was sought and which the Department said it could not locate is not the correct and preferred decision and should be set aside and remitted for further reconsideration, but only in regard to relevant documents held in the Security and Intelligence Division of the Department. That is, a reconsideration of documents that relate to Mr Ferns' letter of 16 February 2004 and which fall within the terms of the 3rd category of the documents requested by Mr Ferns. 24 In this regard the tribunal recommends that Commander Kelly be requested whether he has any recollection of relevant documents and in re-determining the matter the Department provide Mr Ferns with details of Commander Kelly's response and as much information as the Department considers is appropriate in the circumstances in regard to the files that were searched. 25 The tribunal orders that the decision of the Department in so far as it was deemed to have refused access to documents falling within category 3 of Mr Ferns FOI request is set aside and remitted for reconsideration in accordance with the findings and recommendations of the tribunal. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.