Australian Taxation Office

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1 BK and Australian Taxation Office [2014] AICmr 23 (28 February 2014) Decision and reasons for decision of Privacy Commissioner, Timothy Pilgrim Applicant: Respondent: BK Australian Taxation Office Decision date: 28 February 2014 Application number: Catchwords: MR13/00519 Freedom of information Refusal of access to documents Whether reasonable steps taken to find documents (CTH) Freedom of Information Act 1982 s 24A(1) Contents Summary... 1 Background... 2 Decision under review... 2 Whether reasonable steps taken to find a document (s 24A)... 2 Submissions by the ATO... 3 Submissions by the applicant... 4 Findings... 5 Decision... 5 Summary 1. I affirm the decision of the Australian Taxation Office (ATO) of 17 October 2013 to refuse access to documents requested under the Freedom of Information Act 1982 (the FOI Act) on the basis that the documents cannot be found. The Department has taken all reasonable steps to find documents falling within the scope of the applicant s request. 1

2 Background 2. On 29 August 2013, the applicant applied to the ATO for access to records of several phone calls made by the applicant to ATO employees via the ATO switchboard between 11 August 2011 and 17 August On 24 September 2013, the ATO refused the applicant s request under s 24A of the FOI Act on the basis that it had taken all reasonable steps to find the documents but they could not be found or do not exist. 4. On 10 October 2013, the applicant sought internal review of the ATO s decision. 5. On 17 October 2013, the ATO affirmed its original decision. 6. By letter dated 11 December 2013, the applicant sought IC review of this decision under s 54L of the FOI Act. Decision under review 7. The decision under review is the internal review decision of the ATO on 17 October 2013 to refuse the applicant s request. Whether reasonable steps taken to find a document (s 24A) 8. The issue in this IC review is whether the Department has taken all reasonable steps to find the document. Section 24A(1) of the FOI Act provides: 24A Request 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. 9. The Australian Information Commissioner has issued Guidelines under s 93A to which regard must be had for the purposes of performing a function, or exercising a power, under the FOI Act. The Guidelines explain that: The FOI Act is silent about what an agency or minister must do in terms of searching for documents that may be relevant to a request. Agencies should undertake a reasonable search on a flexible and common sense interpretation of the terms of the request. What constitutes a reasonable search will depend on the circumstances of each request and will be influenced by the normal business practices in the agency s environment. At a minimum, an agency or 2

3 minister should take comprehensive steps to locate a document, having regard to: the subject matter of the documents the current and past file management systems and the practice of destruction or removal of documents the records management systems in place the individuals within an agency who may be able to assist with the location of documents and the age of the documents. The Information Commissioner considers that, as a minimum, an agency should conduct a search by using existing technology and infrastructure to conduct an electronic search of documents, as well as making enquiries of those who may be able to help locate the documents. 1 Submissions by the ATO 10. In its original decision, the ATO advised that it was unable to locate the documents sought. However, the ATO also provided the applicant with a two page table containing information that it was able to obtain from the phone system. No further information was found on internal review. 11. In submissions to the OAIC, the ATO provided documents, primarily chains, recording searches conducted in response to the original FOI request and the internal review. 12. The ATO submits that it took comprehensive steps to locate the documents requested including making enquiries with Optus, who operate the ATO s telephone system. 13. The ATO submitted it took further steps to collate the information that it was able to obtain, and sought further confirmation from Optus that no further information was available. This resulted in the release of a two page table provided to the applicant with the original FOI decision. 14. The ATO noted that an earlier FOI request made by the applicant for similar documents had been fulfilled, but that application involved calls made in different circumstances. 15. I have considered the ATO s submissions, in particular the following correspondence which record the ATO s efforts to locate the documents requested by the applicant: An dated 2 September 2013, from ATO Technical Lead, Forensics and Investigations to an ATO Senior Legal Officer saying 1 Office of the Australian Information Commissioner, Guidelines issued by the Australian Information Commissioner under s 93A of the Freedom of Information Act 1982, [3.54] [3.56] (footnotes omitted). 3

4 that it is not possible to comply with this request. The author says that he received a similar request in June 2013 and established with Optus that it is not possible to establish which operator answers a call or where it is transferred to. An dated 18 June 2013, from Optus to the ATO Technical Lead, Forensics and Investigations stating (in relation to the June 2013 request noted above) that it is not possible to establish which operator answers a call or where it is transferred to. An dated 10 September 2013, from ATO Senior Legal Officer to the ATO Technical Lead, Forensics and Investigations instructing that whatever information is available is to be collated. An dated 18 September 2013, from the ATO Technical Lead, Forensics and Investigations to the ATO Senior Legal Officer advising that call records only show the destination as a billing number. The ATO Technical Lead wrote to Optus to see if it is possible to drill down into the billing number and get further details. An dated 23 September 2013, from the ATO Technical Lead, Forensics and Investigations to the ATO Senior Legal Officer advising that the number located is called an Automatic Call Distributor (ACD) routing number. Calls to this number are routed to the first available operator. Optus cannot locate any records of calls being transferred from the operator to the final extension. 16. These s demonstrate that the ATO conducted searches for documents within the scope of the applicant s request. The ATO made comprehensive inquiries to establish whether it was able to obtain the information requested by the applicant. When it appeared that the information sought was not available, the ATO instructed its technical officer to provide whatever information was available. This information was then provided to the applicant. The technical officer made repeated enquiries with Optus in attempts to find information meeting the scope of the applicant s request; however no further information could be found. Submissions by the applicant 17. The applicant has submitted a number of reasons to the ATO and the OAIC as to why she believes the documents exist. These reasons include: When an external phone call is received by an internal ATO extension, the external phone number is displayed on the handset s LED screen and is available for a short time after the call ends by activating the handset s inbox function (and this was so in 2011). an Optus employee who is embedded in the ATO told me records of external phone numbers...could be retrieved. By August 2011 ATO offices had handsets which displayed incoming external call numbers these handsets are still in use and Optus is still the service provider. 4

5 None of the staff involved [those receiving a phone call] worked in a call centre [they had individual telephones] when ATO FOI officers ask Lockheed-Martin contractors to retrieve 2011 ATO call logs, Lockheed-Martin, in turn approach the embedded Optus MNS incident manager who advises FOI staff about how long such a process will take. If FOI staff approve the search, the Optus MNS incident manager refers the request to one of a number of Optus teams not embedded in the ATO. 18. The applicant also provided diagrams and explanations of the telephone in use at the ATO, and further explained the handset logs up to 10 missed calls, displaying the incoming number regardless of whether the external call was made directly to that station or via the ATO switchboard. 19. The applicant is essentially claiming that the telephone call information must exist. These claims are based on her observation that the extension displays and stores numbers for retrieval; and from a conversation the applicant said she had with an Optus employee. I accept that it may be possible for a telephone switchboard system such as that installed at the ATO to retain phone records. However, in this case I find nothing the applicant has said demonstrates that the ATO telephone switchboard system operates with the capability to provide information within scope of the applicant s request. 20. The question for determination is not whether is it technically or theoretically possible to obtain the any further information from the telephone system. The question is whether the ATO has taken reasonable steps under s 24A of the FOI Act to find documents that fall within scope of the applicant s request, including any electronic records that could be produced from the ATO s phone system. It is apparent from the material on hand, that the ATO has taken reasonable steps. Findings 21. For the purposes of s 24A(1), I am satisfied the ATO has taken all reasonable steps to find documents within the scope of the applicant s request, and the documents do not exist. Decision 22. Under s 55K of the FOI Act, I affirm the Department s decision of 17 October Timothy Pilgrim Privacy Commissioner 28 February

6 Review rights If a party to an IC review is unsatisfied with an IC review decision, they may apply under s 57A of the FOI Act to have the decision reviewed by the Administrative Appeals Tribunal. The AAT provides independent merits review of administrative decisions and has power to set aside, vary, or affirm an IC review decision. An application to the AAT must be made within 28 days of the day on which the applicant is given the IC review decision (s 29(2) of the Administrative Appeals Tribunal Act 1975). An application fee may be payable when lodging an application for review to the AAT. The current application fee is $816, which may be reduced or may not apply in certain circumstances. Further information is available on the AAT s website ( or by telephoning

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