In Re John Patrick Ford v Child Support Registrar [2007] AATA 1242 the Administrative Appeals Tribunal found that the Child Support Agency had gone to sufficient lengths to find documents requested by Mr Ford under the Freedom of Information Act 1982 (Cth) ("FOI Act"). Any further steps taken to locate the documents, the Tribunal determined, would constitute an unreasonable diversion of the Agency’s resources. The Tribunal also found that Mr Ford’s application to the Tribunal was vexatious or frivolous under the Administrative Appeals Tribunal Act 1975 (Cth) ("AAT Act"), and directed that he must not make subsequent similar applications unless the Tribunal grants him leave to do so.
The facts
This case relates to one in a series of FOI requests and Tribunal applications lodged by Mr Ford, who had been employed by the Agency from 23 August 1999 until 7 July 2004. He lodged the subject FOI request with the Agency on 2 November 2005, asking for correspondence between, to or from two of its employees (whom we will refer to as E and H), which related to him and was dated between 30 August and 30 November 2005.
At the time of the hearing Mr Ford was in prison for offences including rape, threat to kill, stalking and aggravated burglary. It is not clear from the Tribunal’s decision whether E or H were victims of Mr Ford’s crimes, although it does indicate that he had subjected them to some kind of harassing behaviour and they were transferred from Melbourne to Perth as a result.
From 2004 to 2006 Mr Ford launched an extensive series of claims, including 22 FOI requests lodged with the Agency and 18 applications made to the Tribunal, apparently in search of information that would assist in his unfair dismissal proceedings and appeal against his criminal sentence. Twelve of the FOI requests related to correspondence somehow involving E and H. In relation to the subject application, the Agency searched for existing email and paper correspondence that fell within the scope of the request. E and H were asked for documentation on a number of occasions, but they denied holding any email correspondence relating to Mr Ford. Searches of the personal drives on E and H’s computers for correspondence from the period September to 11 October 2005 did not locate relevant documents.
The Agency did not search backup tapes on which deleted emails might have been stored, because of the cost and staffing that this would entail: it would have had to acquire new technology at a cost of around $500,000 and significant staff resources would have been required to examine the individual documents.
The Agency made its decision on Mr Ford's FOI request on 2 February 2006, refusing it on the basis that it would substantially and unreasonably divert the Agency's resources. Subsequently the Agency asked Mr Ford to narrow the scope of his request, but he refused. The Agency wrote to him on 21 March 2006, confirming its decision on the additional basis that the documents could not be found or did not exist.
Mr Ford applied to the Tribunal for review of the Agency's decision. The Agency applied to the Tribunal to dismiss the claim for being frivolous or vexatious and to make an order preventing Mr Ford from making other similar claims without leave. After the commencement of the Tribunal proceedings one relevant, printed email was discovered by the Agency's personnel unit. It discussed Mr Ford, and was sent by E to H and another person on 6 September 2005. In evidence E claimed to fear what Mr Ford might do if he became privy to the contents of the email.
The legislative framework
The Tribunal considered the following provisions in the FOI Act and the AAT Act.
Section 24(1)(a) of the FOI Act says:
"The agency or Minister dealing with a request may refuse to grant access to documents in accordance with the request, without having caused the processing of the request to have been undertaken, if the agency or Minister is satisfied that the work involved in processing the request:- in the case of an agency—would substantially and unreasonably divert the resources of the agency from its other operations".
Section 24A of the FOI Act provides that "an agency or Minister may refuse a request for access to a document if:
- all reasonable steps have been taken to find the document; and
- the agency or Minister is satisfied that the document:
- is in the agency’s or Minister’s possession but cannot be found; or
- does not exist."
Section 37(1)(c) of the FOI Act allows the exemption of a document if its disclosure "would, or could reasonably be expected to… endanger the life or physical safety of any person."
Section 41(1) allows documents to be exempt if their disclosure "would involve the unreasonable disclosure of personal information about any person (including a deceased person)."
Section 42B(1) of the AAT Act says:
" Where an application is made to the Tribunal for the review of a decision, the Tribunal may, at any stage of the proceeding, if it is satisfied that the application is frivolous or vexatious:- dismiss the application; and
- if the Tribunal considers it appropriate, on the application of a party to the proceedings, direct that the person who made the application must not, without leave of the Tribunal, make a subsequent application to the Tribunal of a kind or kinds specified in the direction."
The Tribunal's decision
The Tribunal affirmed the Agency’s decision and also found that the email of 6 September 2005 was exempt. The Tribunal dismissed the proceedings for being frivolous or vexatious and directed that Mr Ford must not make similar applications to the Tribunal without leave.
The Tribunal accepted the Agency’s argument that the search of backup tapes would have unreasonably diverted its resources. In making this finding the Tribunal, took into account the cost of the actions required and the likelihood that relevant documents would not be found. Any such searches would have been, "a waste of time, effort and resources". The Tribunal referred to Radicic v Australian Postal Corporation (2000) 59 ALD 157, in which it was found that there was nothing to warrant an agency to expend its funds in obtaining additional equipment in order to satisfy an FOI request.
The Tribunal was satisfied that the Agency had taken reasonable steps to find the documents, through its inquiries of E and H and its electronic search, which covered half of the period in question. The combination of the inquiries and electronic search allowed it to draw a conclusion that no documents existed. The Tribunal noted that it would have been preferable for the electronic search to include the remainder of October as well as November 2005, but accepted that the respondent had already engaged in a number of searches in connection with Mr Ford’s applications and that it was reasonable to rely on E's and H's evidence.
The Tribunal found that part of the printed email dated 6 September 2005 was exempt because its disclosure could reasonably be expected to endanger E’s life or physical safety. Accepting that E’s belief that he was at risk of violence was reasonably held, the Tribunal took into account Mr Ford’s violent history and the absence of any statement by Mr Ford that E was not at risk of violence from him. Applying Centrelink v Dykstra [2002] FCA 1442, the Tribunal found that the email, if released, "would create a reasonable expectation, which was not irrational, absurd or ridiculous that objectively, [E] was at risk". The Tribunal found that the exemption for personal information in section 41 of the FOI Act applied to the remainder of the email such that none of the document should be released.
Again accepting the Agency’s arguments, the Tribunal found that Mr Ford’s application was vexatious or frivolous. In coming to this conclusion, the Tribunal noted the history of Mr Ford’s applications, in particular their number and similarity. It applied Attorney-General v Wentworth (1988) 14 NSWLR 481 and found the applications were calculated to annoy, as well as being manifestly groundless and ultimately hopeless: there was no evidence pointing to the existence of the documents he requested. The application was dismissed on this basis.
The Tribunal further directed Mr Ford not to make further similar applications without leave. It considered the "very unpleasant and disgraceful behaviour" to which H and E had been subjected by the applicant. It took into account the alleviating effect that preventing his repeated applications would have on them, as well as the fact that the it would assist the Agency to administer the child support scheme without being frequently hampered by Mr Ford’s applications
Implications
The facts of this case are unusual and may not often arise, however it is not uncommon for agencies dealing with FOI requests to have to decide how many searches are enough and what level of resource commitment is too much. The Ford decision provides some indication of how these questions might be answered:
- Where an agency receives multiple applications for the same or similar documents from one applicant, it may not be expected to duplicate searches already undertaken.
- Agencies are entitled to rely on oral confirmation from trusted employees that documents that are allegedly in their possession do not exist, especially where they are backed up by the results of physical record searches or database interrogations. The agency does not have to go so far as to search the personal possessions of the employees in question.
- The introduction of new and expensive technology or infrastructure to deal with a request may constitute an unreasonable diversion of resources, as may the application of additional staff members to the task.
It should be remembered that the answers to these questions will depend on the size and resources of the particular agency, as well as the nature of the FOI request. Ford suggests that where searches have already been conducted and the likelihood of further documents being found is low, resource intensive searches may not be required.
Finally, Ford reminds us of the Tribunal’s power to dismiss a frivolous or vexatious application and to prevent further applications being made without leave. If an agency finds itself in a similar situation to that of the Child Support Agency in Ford, it may be appropriate for the agency to apply for orders under section 42B of the AAT Act.
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