Freedom of Information Act 1992, ss 4, 11(1), 24A, 61, 66

Rogerio Cristovao and Secretary, Department of Social Security [1998] AATA 787

Chu v Telstra Corporation [2005] FCA 1730; (2005) 147 FCR 505

1. Dr Ware has made two applications to the Tribunal for a review of decisions made by the Department of Health and Ageing. Those decisions relate to two separate requests he made to the Department on 10 November 2008 and 18 August 2009 under the Freedom of Information Act 1992 ("the Act").
2. Although access to a number of documents was provided to Dr Ware he considers that his requests have not been fully met. He believes further relevant documents exist. The Department contends that in respect to application 2009/2802 it has provided documents which satisfy that particular request. As far as application 2010/0001 is concerned it believes that it has taken all reasonable steps to find relevant documents. It contends that no further relevant documents exist.
3. As the factual basis of the two applications for review is essentially the same it was agreed by the parties that both applications should be heard together.

1. In 1999 the Commonwealth Government decided to establish a committee structure to thoroughly review the safety and also the clinical and cost effectiveness of a type of nuclear medical imaging technology known as Positron Emission Tomography or "PET".
2. The principal committee involved in the review was the Medicare Services Advisory Committee ("MSAC"). Its role was to advise the then Minister for Health and Aged Care on the safety and effectiveness of new and emerging medical technologies and also to advise whether Medicare funding should be provided for the use of the particular technology.
3. The Government decided that the review of PET would involve a four stage process:

(a) The National Health and Medical Research Council Clinical Trial Centre was appointed as the "Contractor". Its role was to undertake a review of all of the literature on PET and to provide a report.

(b) A "Supporting Committee" comprising a range of suitably qualified medical professionals with sufficient technical understanding of important issues including safety and clinical effectiveness, was to consider the contractor's report and make its own evaluation of PET. It was then to provide a report.

(c) A "Steering Committee", which included representatives of the medical profession, State and Territory Governments and also consumers was then to consider the Supporting Committee's report giving due consideration to broader policy questions.

(d) MSAC, as the principal Committee involved, was then tasked with considering the report arising from the first three stages of the review process and to provide appropriate written advice on 'PET' to the Minister for Health and Aged Care.

1. Dr Ware is a medical practitioner and clinical researcher. He has been involved for a number of years in the care of patients with cancer. Dr Ware is also a co-author of scientific papers on PET. He considers PET to be a most valuable aid to the treatment and care of patients suffering cancer. It is his strong view that PET should be made widely available to assist people in making the most suitable health care choices.
2. It remains of deep concern to Dr Ware, and to some other experts in the field, that the expert technical advice provided in the report of the Supporting Committee and also of the Contractor in their evaluation of PET was altered in a material way without the approval of either the Supporting Committee or the Contractor.
3. But it is evident that it was not only the process but also the outcome of the PET evaluation which caused concern to Dr Ware and others.
4. Professor Rodney Hicks was a witness at the hearing of these applications. He is a consultant physician in nuclear medicine and is Director of Cancer Imaging at the Peter MacCallum Cancer Centre. Professor Hicks made the following comments in a letter to Dr Richard King dated 7 March 2001 (Attachment 4 to Professor Hicks' affidavit of 14 February 2011 "A2"):

"I reiterate that the current view is an awful outcome, not for Rod Hicks, not for Peter Mac, not for the Austin, but for patients. This is the superior non-invasive staging investigation in cancer and is playing or will play a fundamental role in treatment planning and monitoring in future oncology practice. The National Cancer Institute in the US has recognised this with major funding initiatives for functional imaging, particularly including PET. I note your reference to the Swedish Review as justification of the MSAC decision but also that they too based their decision on the fundamentally flawed INAHTA report. I am more encouraged by the recent HCFA decision which I suggest you read. The members of MSAC, the Department and the Minister may attempt to convince others that I am the sole dissenting view but I know through my private discussion that my colleagues involved in PET largely agree with me (even though they seem to be more pragmatic than me and willing to accept small concessions rather than buck the system by being outspoken)"

1. Dr Geoffrey Bower, who also gave oral evidence, said in his affidavit of 21 January 2011 ("A2"):

"I believe that the conclusion in the altered report of the Supporting Committee that there was "insufficient evidence of the clinical effectiveness of PET" was used to justify a very diluted provision of PET services to the Australian public. The person or persons responsible for that distortion of the evidence should be identified. I hope that by Orders records can be divulged relating to these critical alterations and that person or persons can be identified and the process by which this was able to occur without the knowledge of the Committee members be changed so that it cannot reoccur".

1. Although it is helpful to understand the background to Dr Ware's FOI requests it must be emphasised that the the role of the Tribunal is not to inquire into any deficiencies in the Committee process nor to determine if the final recommendations truly reflected the views of the Committees. The Tribunal's role is confined by the Act to the subject matter of documents.
2. In the two FOI requests made by Dr Ware and in the applications to the Tribunal there is a concentration on certain alterations made to the Supporting Committee Report.
3. The alterations of concern to Dr Ware are set out in paragraph 5 of his affidavit (Exhibit A3). He states in that paragraph:

"Two alterations had been made by way of addition.

The MSAC Supporting Committee concludes that:

a) there is insufficient evidence at this time from which to draw definite (sic) conclusions about the clinical effectiveness and cost effectiveness of PET, AND

b) PET is potentially clinically effective".

(The alterations of concern to Dr Ware which were highlighted in red in his affidavit are underlined above. He has used the word "definite" but the word in the alteration is "definitive").

1. At paragraph 17 of his affidavit Dr Ware said as follows:

"The alterations appeared to me to be incredibly important. They were a prejudiced assessment of the scientific evidence at the time and misrepresented the judgements of Supporting Committee members. It appeared certain that the alterations would prevent patients getting fair knowledge of PET's benefits and appropriate public healthcare funding. What has occurred since has confirmed that view".

1. Dr Ware further explained his concerns in the following paragraphs of his affidavit:

"29. Patients who might be referred for a PET scan if MSAC has been able to correctly report on the technology may be deprived of the benefit because a doctor considered PET to be an unproven technology.

30. Patients who might be referred for a PET scan if MSAC has been able to correctly report on the technology may be deprived of the benefit because a State Government may not provide resources in its public hospitals for a technology that has "insufficient evidence" to back its clinical value.

31. A typical patient who might be advised that PET is not yet proven to be clinically effective is a lung cancer patient being evaluated for curative surgery where PET is often the only technology to show that cancer spread makes the hazardous and expensive surgery futile. Rather than deal with the cancer in dignity, that patient undergoes completely unnecessary surgery causing decreased quality of life with no potential for cure.

32. A patient with colon cancer is being considered for liver resection. It is known that this procedure is futile as well as dangerous if there is additional tumour outside the area of intended liver resection. PET scanning finds evidence of additional areas of tumour in a large number of patients".

1. Over a period in excess of ten years Dr Ware has used various avenues to try to discover exactly how the alterations came about. Among the many steps taken to discover the truth were the two separate requests of the Department made under the Act. The precise terms of the two requests will be considered later in these reasons.
2. The Department decided to grant access to 13 documents in respect to the request of 10 November 2008 and 28 documents in response to the request of 18 August 2009. Dr Ware sought an internal review of the decisions. On review the Department affirmed its original decisions.

1. Section 11(1) of the Act provides as follows:

"(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".

1. It should be noted that the right of access is to documents and not to information generally. The word "document" is defined in broad terms in section 4 of the Act as follows:

"document includes:

(a) any of, or any part of any of, the following things:

(i) any paper or other material on which there is writing;

(ii) a map, plan, drawing or photograph;

(iii) any paper or other material on which there are marks, figures, symbols or perforations having a meaning for persons qualified to interpret them;

(iv) any article or material from which sounds, images or writings are capable of being reproduced with or without the aid of any other article or device;

(v) any article on which information has been stored or recorded, either mechanically or electronically;

(vi) any other record of information; or

(b) any copy, reproduction or duplicate of such a thing; or

(c) any part of such a copy, reproduction or duplicate;

but does not include:

(d) library material maintained for reference purposes; or

(e) Cabinet notebooks".

1. Section 24A of the Act is in the following terms:

_"_Requests may be refused if documents cannot be found or 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".

1. Section 24A is succinct in its terms. It requires a consideration of whether all reasonable steps have been taken by the Department to find documents within the scope of the applicant's request. If such steps have been taken it is necessary to consider whether the documents are in the Department's possession but cannot be found or alternatively whether they do not exist.
2. The word "reasonable" is frequently used in legislation and has been interpreted by Courts and Tribunals in many varied contexts. In Rogerio Cristovao and Secretary, Department of Social Security [1998] AATA 787, Deputy President McDonald referred to a particular definition of "reasonable" in the Shorter Oxford Dictionary. Part of the definition the Deputy President thought most appropriate to apply to the meaning in section 24A was:

"Not going beyond the limit assigned by reason; not extravagant or excessive ..."

The Macquarie Dictionary (5th Edition) also includes the following in its definitions of "reasonable":

"1. Endowed with reason

2. Agreeable to reason or sound judgment ...

3. Not exceeding the limit prescribed by reason; not excessive ..."

1. In Chu v Telstra Corporation [2005] FCA 1730; (2005) 147 FCR 505, Finn J considered the meaning of section 24A and emphasised the significance of the inclusion of the emphatic word "all" in "all reasonable steps". But the word "all" is qualified by the word "reasonable" so that the steps required to be taken do not have to go beyond a limit assigned by reason and do not have to be extravagant or excessive.
2. In these proceedings the respondent carries the onus of establishing that the decisions of the Department were justified or that the Tribunal should give a decision adverse to the applicant. (See section 61 of the Act).

1. The principal issues to be determined by the Tribunal are:

(a) Have Dr Ware's requests for relevant documents been satisfied?

(b) Has the Department taken all reasonable steps to find any additional relevant documents? If so are the documents in the Department's possession and cannot be found or do not exist?

1. In this application to the Tribunal Dr Ware seeks a review of the Department's Internal Review decision of 29 May 2009 (T13). That decision relates to Dr Ware's first request of 10 November 2008.
2. The Internal Review affirmed the Department's original decision that 13 documents in the Department's possession fall within the scope of Dr Ware's first FOI request. It further affirmed that all 13 documents should be released in full to Dr Ware.
3. Dr Ware's first FOI request was in the following terms:

"All documents that prove the Steering Committee members were provided with, and ratified, the altered document that was provided to MSAC [the Medicare Services Advisory Committee] and represented by the Department of Health and Ageing to be the Supporting Committee report".

1. The use of the word "prove" confines the ambit of this request. Dr Ware is essentially seeking documents which prove that the Steering Committee was provided with, and ratified, the alterations to the Supporting Committee's report.
2. At paragraph 5 of his affidavit (R2) of 9 November 2009 Dr Ware states:

"The minutes of the meetings of the Steering Committee between the finalisation of the report of the Supporting Committee on the 23 March 2000 and the presentation of the altered document to MSAC on the 24 May 2000 contain no minute that that Committee agreed with or ratified the altered document ... "

"The 13 documents produced by the Department have no bearing on the proof referred to at paragraph 1 hereof in that they do not show how, when and by what means the Steering Committee agreed to the changes".

1. Included in the 13 documents provided to Dr Ware were the "Minutes of the 3rd Steering Committee Meeting - Commonwealth Review of Positron Emission Tomography (PET) 6 April 2000".
2. That record of the Steering Committee Meeting of 6 April 2000 is critically important to Dr Ware's FOI request as, in association with other evidence, it establishes to the Tribunal's satisfaction that the Steering Committee was provided with and ratified the alterations to the Supporting Committee Report.
3. On page 2 of the Minutes of the Meeting of 6 April the following is recorded:

"Professor Kearney informed the Committee that the MSAC Executive met on 30 March and gave approval for the Supporting Committee's report to be considered by the Steering Committee. The report is Committee-in-confidence until the full MSAC meet and formally consider the report on 24 May. He added that MSAC assesses technologies on three criteria, safety, effectiveness and cost effectiveness. While PET has been shown to be safe, there is insufficient evidence to draw definitive conclusions on clinical and cost effectiveness.

The Committee agreed with the general conclusions and recommendations of the MSAC Supporting Committee. However, members suggested some minor changes to the wording of certain recommendations. These changes have been incorporated in the revised draft approved indications and revised draft Steering Committee findings and recommendations at Attachments A and B respectively".

1. It is noted by the Tribunal that the minutes indicate that "... members suggested some minor changes to the wording of certain recommendations".
2. It is also of significance that the minutes record at page 7 that the word "potentially" was to be inserted before "clinically effective" and "cost effective" within recommendation 5. (See 5 in Attachment B to the Minutes).
3. In the same minutes the following is noted under "Action(s) arising":

"The Department will amend the wording of some of the Supporting Committee's recommendations for inclusion in the MSAC Supporting Committee and the Ministerial report".

1. In "Attachment A" to the minutes it is recorded as follows (Page 9):

• The PET Review MSAC Supporting Committee concludes that there is insufficient evidence on PET's clinical or cost effectiveness with respect to the six indications reviewed to warrant unrestricted MBS funding.
• While the Committee agrees that unrestricted funding is unwarranted at this time, the evidence suggests that PET is safe, potentially clinically effective and potentially cost effective in the indications reviewed. On this basis the MSAC Supporting Committee recommends that PET be funded for the following clinical scenarios [abridged]"

1. On Wednesday 10 May 2000 the 4th Steering Committee Meeting was held at "Centra Melbourne Airport". It is recorded in the minutes of that meeting (these minutes were also released in full to the applicant) that the Committee formally endorsed the minutes of its meeting held on 6 April 2000. (The minutes include the amendments set out in Attachment A). It is noted that the Committee also decided at that meeting on 10 May to make some further amendments to the "approved indications". Those further amendments are set out in the minutes.
2. In his affidavit of 21 January 2011 (A1) Dr Bower states as follows:

"8. What the Steering Committee finally reported to the Minister was an altered form of the original wording of the Supporting Committee's recommendations. Two alterations had been made by way of addition.

"The MSAC Supporting Committee concludes that:

a) there is insufficient evidence at this time from which to draw definite conclusions about the clinical effectiveness and cost effectiveness of PET and

b) PET is potentially clinically effective".

9. The recommendations including these critical alterations became the recommendations of the Steering Committee with some further changes in wording but I did not "sign off" on those recommendations. I was not asked to agree to these changes. I would not have approved such critical alterations to the Supporting Committee's report".

1. When giving evidence at the hearing Dr Bower was asked by counsel for the respondent, Mr Davidson, whether the relevant alterations to the Supporting Committee report were made at the Steering Committee meeting on 6 April 2000. He replied:

"At the 6 April Steering Committee meeting Dr King proposed that the word "potentially" be inserted before "clinical effectiveness" to make it consistent with other wording in the recommendations of what we understood was the draft report, or draft recommendations of the supporting committee; and that was discussed and was, I believed to be returned to the supporting committee for verification, since Dr King was chair of that committee".

"So the steering committee was happy with that proposed change?"

"I believe that that's certainly how it's minuted".

"But I don't recall a vote being taken or that great emphasis was placed on it". (Transcript page 80).

"I remain of the view that we have been hasty in formulating our draft recommendations. They were presented to us by the department and by the chairman of the supporting committee, and there was little time to discuss things". (Transcript page 81).

1. It is of course most unusual for the views expressed in a report of one committee to be amended unilaterally by another committee without reference to the earlier committee yet still be portrayed and presented as the views of the earlier committee.
2. Dr Richard King, who gave oral evidence to the Tribunal, was at the relevant time Chairman of the Supporting Committee. He also sat as a Member of the Steering Committee and of the MSAC Committee itself.
3. Dr King readily agreed in evidence that the alterations made to the Supporting Committee Report at the meeting of the Steering Committee on 6 April 2000 were not referred back to the Supporting Committee for approval. His explanation was:

"... I thought the changes were editorial, not of substance. If they had been of substance I would have taken them back to the sub-committee".

(Transcript page 152)

1. Earlier in his evidence Dr King had explained why he felt that the change was not one of "substance". He stated as follows:

"...when we looked at this - the recommendations, we had a first recommendation saying there is insufficient evidence on PET's clinical or cost effectiveness with respect to the six indications reviewed to warrant unrestricted funding. And then, on the next one, we're saying that PET is safe, clinically effective and potentially cost effective. And it was felt, from an editorial point of view, that you couldn't have two conflicting statements. You can't in one say that there is insufficient evidence on PET's clinical effectiveness and then in the next line say that PET is clinically effective". (Transcript page 148)

1. Dr King said that inclusion of "potentially" in the second recommendation was discussed and agreed at the meeting of the Steering Committee. He said:

"I have no idea who raised it, except it wouldn't have been me ..."

That statement by Dr King appears to be contrary to Dr Bower's recollection. As mentioned above Dr Bower stated in evidence that Dr King had:

"proposed that the word "potentially" be inserted before "clinically effectiveness" to make it consistent with other wording ..." (Transcript page 80)

It is quite unnecessary for the Tribunal in these proceedings to attempt to resolve the conflicting recollections of Dr King and Dr Bower.

1. The minutes of the two Steering Committee Meetings held on 6 April 2000 and 10 May 2000 which have been provided to Dr Ware in response to his FOI request "prove", at the very least to the civil standard of proof, that the relevant alterations to the report of the Supporting Committee were provided to, and ratified by the Steering Committee.

It is apparent from the minutes of the meetings that there was an absence of formal meeting procedure. For example, there is no record of motions being moved, supported by a mover or seconder. It is reasonable to infer that the Committee simply resolved to take certain action.

The evidence establishes that the alterations were discussed at the meeting of 6 April. It is apparent from the minutes of the meeting of 10 May 2000 that the precise terms of the alterations were formally endorsed at that meeting. The meeting adopted as accurate the earlier minutes with the alterations attached.

1. The Department has provided Dr Ware access to the documents that "... prove that the Steering Committee was provided with and ratified ..." the altered Supporting Committee Report.

With respect to application number 2009/2802 the Tribunal concludes that the respondent has already released to Dr Ware documents which satisfy the terms of his request of 10 November 2008

1. In this particular application to the Tribunal Dr Ware seeks a review of the Department's internal review decision of 22 December 2009. That decision relates to Dr Ware's second request of 18 August 2009.
2. The internal review affirmed the Department's original decision that 28 documents in the Department's possession fall within the scope of Dr Ware's second FOI request. It was also affirmed that the 28 documents be released to Dr Ware in full.
3. Dr Ware's second request is as follows:

"The Department was previously asked to supply (FOI request 087-0809) documentary evidence to prove that the Steering Committee ratified the altered document that was subsequently provided to MSAC as if it were the true Supporting Committee report.

The Department agreed to release the documents in question, but the documents released do not show that the Steering Committee agreed to the alterations in question.

1. Could the Department release documents that demonstrate when, and how, the document in question was produced, and who approved providing MSAC with the altered document?

2. Could the Department provide the documents that demonstrate who authorised the insertion of those words, and when those words were inserted?

3. Could the Department provide the documents that demonstrate who authorised the presentation of the altered contractors report to MSAC at the committee's 24 May 2000 meeting?"

1. The second request is of wider ambit than the first FOI request and more inquiring in its terms. It essentially asks the Department for access to any documents in its possession which demonstrate how the altered document was produced, when the alterations occurred, who authorised the insertion of the new words and who authorised the presentation of the altered report to MSAC at its 24 May 2000 meeting.
2. It could perhaps be argued that Dr Ware's second request has also been satisfied as there is evidence which establishes that the Steering Committee authorised the alterations and agreed that the amended recommendations should be presented to MSAC. However in keeping with the sense of openness which is the very essence of the Act one should not construe requests in an unduly strict sense but should endeavour to appreciate the true nature of the request. It seems to the Tribunal that Dr Ware is seeking to locate documents which reveal full details of exactly how the alterations came about including the names of the individuals involved.
3. When Dr Ware sought a review of the initial decision on the second request Mr Tony Kingdon, First Assistant Secretary Medicare Benefits Division of the Department, asked Ms Elizabeth Hoole of the Department to undertake a search for documents which were within the scope of the applicant's second request.
4. In her affidavit dated 15 September 2010 (Exhibit R2) Ms Hoole stated as follows:

"5. On being requested to carry out the search for documents that fell within the scope of the FOI request for the purposes of the internal review, I instructed Ms Bethany Leditschke to assist me in undertaking a completely new search for documents that were within the scope of the FOI request and which were in the Department's possession.

6. Ms Leditschke has been the Communications Officer in the MSAC Secretariat Section since February 2009. Her responsibilities include quality assurance of records management for the MSAC Secretariat Section.

7. Ms Leditschke and I understood that the scope of the applicant's FOI request was as set out at T3 of the Tribunal documents.

8. Since the Senate's Inquiry into the review of Positron Tomography (PET) in 2000, all of the Department's PET Review related files (PET Review files), 36 files have been stored in locked filing cabinets within the MSAC Secretariat Section. The processing of a 2009 FOI request led to the discovery of an additional 14 relevant files which had been put in storage. These 14 files have been stored in the locked filing cabinets within the MSAC Secretariat Section together with the other 36 files since then. The MSAC Secretariat Section relocated into a new building in February 2010 and the bulk of these files have now been put in archives.

9. Ms Leditschke and I examined each of the 50 PET Review paper files held in the filing cabinet within the MSAC Secretariat Section page by page for any documents that fell within the scope of the FOI request.

10. Ms Leditschke and I also searched all electronic documents in PET related folders held by the MSAC Secretariat Section on the Department's shared drive.

11. I instructed Ms Leditschke to search the TRIM database for files that had been created in the Department using search terms 'PET' and 'Positron Emission Tomography', 'Supporting' and 'Steering' as file titles.

12. I also instructed Ms Leditschke to conduct a search on COReDOCS for any documents that might fall within the scope of the FOI request.

13. Ms Leditschke and I did not find any documents falling within the scope of the FOI request other than the ones that had already been identified as falling within the scope of the FOI request in the Department's decision of 9 October 2009.

14. I also considered the searches that had been undertaken for the purposes of the initial FOI decision in order to compare the searches that Ms Leditschke and I had undertaken for the purposes of ensuring that there were no gaps in our searches.

15. On or around 21 December 2009, I outlined to Mr Kingdon the searches that Ms Leditschke and I had undertaken to locate the documents within the scope of the FOI request".

1. Following Dr Ware's application to the Tribunal further searches have been undertaken by the Department as follows:
   • Ms Hoole searched the Department's archived files containing financial and contractual information relating to the NHMRC Clinical Trials Centre (the contractor) to ensure that it did not contain documents which came within the scope of the applicant's FOI request and which had been misfiled. It was confirmed in a letter dated 23 April 2010 from the Australian Government Solicitor which was attached to the affidavit sworn by Ms Hoole dated 15 September 2010 (Exhibit R2) that no such documents were found.
   • Ms Hoole also contacted the Contractor to ascertain whether it retained any document which indicated who had authorised alterations to the contractor's report. In an email from Professor John Simes of the NHMRC Clinical Trials Centre (Exhibit R3) Professor Simes stated:

"... Our staff have now reviewed the electronic and hard copy archives of the PET review undertaken by the CTC in 2000, and have been unable to identify documentation relating to the preparation of the Recommendation, other than minutes of the fourth Supporting Committee meeting. These minutes are brief and do not appear to document the specific wording of the Recommendation; further, the Department forwarded these minutes to us previously for our consideration after a previous FOI request, so they do not contain information that you do not already have.

I am sorry we were not able to be of more help".

• In addition the Department has made further searches following directions given by this Tribunal. The Tribunal required the Department to:

"... conduct a search for any workbooks, notebooks, or other documents containing handwritten notes made by any officer of the Department relating to relevant meetings and decisions of the Steering Committee and Supporting Committee of MSAC".

• In an affidavit of 25 May 2011 Kim Robbins, Legal Practitioner and Public Servant, details the extensive searches undertaken in response to the Tribunal's direction as mentioned above. Ms Robbins thoroughly searched all areas of the MSAC Secretariat Section of the Department for any notebooks or any handwritten notes relevant to the PET Review in 1999-2000. This involved a search of each of the work areas of the Section, and the Section's filing cupboards, safe, compactus, workrooms and the office of the Director and Assistant Secretary.
• The further search by Ms Robbins also included making inquiries of Mr John Hastings, Ms Eliza Hazlett, Dr John Primrose and Mr Alan Keith. No further relevant documents were located. In particular Ms Robbins did not locate any "workbooks, notebooks or other documents containing handwritten notes made by an officer of the Department relating to relevant meetings and decisions of the MSAC Supporting or Steering Committees".
• The Tribunal also requested that four documents referred to in Ms Hoole's oral evidence that she and another officer "... thought might have been relevant ..." to the applicant's requests, but which Mr Kingdon considered were beyond the scope of the requests, be provided to the Tribunal so that it could itself consider whether those documents fell within the scope of the Applicant's requests.
• Those four documents have now been provided to the Tribunal and also forwarded to the applicant. Three of the documents were simply copies of documents previously provided to the applicant and the other document was an email to a New South Wales Department Officer which has no direct relevance to either of the two FOI requests made by Dr Ware.

1. It was contended on behalf of Dr Ware that the Department had not taken all reasonable steps to find documents relevant to Dr Ware's requests. Counsel for Dr Ware, Mr Read, suggested that there had not been proper searches for documents including the following:
   • The four documents Ms Hoole believed may be relevant but which Mr Kingdon determined were outside the scope of the request (these documents have since been provided as explained in paragraph 57 above)
   • Documents used to inform Ms Halton in her advice to Dr Ware of the 3 April 2002
   • Workbooks (there has since been a thorough search for workbooks as stated by Ms Robbins in her affidavit of 25 May 2011)
   • File notes (handwritten and other)
   • Electronic documents with tracked changes
   • Faxes
2. The Tribunal is satisfied that the Department has conducted a most thorough search of its records, in both paper and electronic form, in an endeavour to find any documents which fall within the scope of the applicant's request.
3. The initial extensive search revealed 28 documents of relevance. The 28 documents are listed in Attachment A at T6. All of those documents were provided to Dr Ware in full. Following Dr Ware's request for a review of the Department's initial decision Ms Hoole and Ms Bethany Leditschke carried out a completely new search for documents which fell within the scope of the second FOI request.
4. Ms Hoole and Ms Leditschke examined the 50 PET review paper files page by page. They also searched all of the electronic documents in PET related folders on the Department's shared drive. Ms Leditschke also searched the TRIM database using a range of search terms including "PET", "Positron Emission Tomography", "Supporting" and "Steering". As well, there was a search on COMDOCS for any documents that might fall within the scope of the FOI requests. Ms Hoole, who the Tribunal finds to be an honest and reliable witness, was satisfied that there were no gaps or omissions in the very thorough search she and Ms Leditschke had undertaken.
5. Also, as detailed in paragraph 61 above, following Dr Ware's application to this Tribunal further extensive searches have been undertaken.
6. Despite all of these extensive searches, including searches undertaken in the course of these proceedings, no further relevant documents have been located.
7. The Tribunal is satisfied that copies of any relevant file notes, faxes or emails would have been placed in one or other of the 50 paper files that have been searched page by page. It is further satisfied that any relevant documents relied upon by Ms Halton in writing the response to Dr Ware on 3 April 2002 were on the paper files or in the electronic records of the Department already provided to Dr Ware.
8. After considering the evidence given at the initial two day hearing the Tribunal formed the view that any existing workbooks or notebooks could potentially have been the best source of contemporaneous information about the detailed workings of the Committees and of discussions which had taken place at Committee meetings or in connection with those meetings. As has been explained following the direction made at the hearing on 10 May 2011 a further thorough search was undertaken including a very extensive physical search of the MSAC Section of the Department. No workbooks or notebooks were located.
9. The Tribunal is satisfied that there are no other reasonable steps that the respondent can take to locate any further documents relevant to the applicant's request.

1. In application number 2010/0001 the Tribunal concludes on the material before it that the respondent has taken all reasonable steps to find documents relevant to the applicant's request of 18 August 2009. It is satisfied that the Department has already given Dr Ware access to all relevant documents and that no further relevant documents exist.

1. For the above reasons the decisions under review are affirmed.

1. Counsel for the applicant Mr Read gave notice at the hearing of an intention to make an application for costs pursuant to section 66 of the Act. If the applicant wishes to pursue that course of action then it will be necessary for an application, supported by an affidavit addressing the various matters referred to in sub-section (1) and (2) of section 66 of the Act, to be lodged within 21 days of the date of this decision.

I certify that the 69 preceding paragraphs are a true copy of the reasons for the decision herein of The Hon R J Groom AO (Deputy President)

Counsel for the Applicant Mr K Read and Mr G O'Rafferty

Solicitor for the Respondent Ms K Robbins, Legal Services Branch, Department of Health and Ageing