Decision 5
59 On 1 May 2018, the applicant lodged a FOI request with AUSTRAC in the following terms:
In relation to my father Roger Gregory MATSON (DOB 7 June 1941) and any of the legal names been known by (Roger Gregory Fletcher; and Roger Temple BELL), I seek all documents, communications, correspondence, requests and reports created by AUSTRAC. This would include all internal AUSTRAC emails, letters, facsimiles, briefs, reports, case notes and requests that were made by AUSTRAC in relation to the Mutual Assistance between the Commonwealth Attorney-General's Department and the US Department of Justice (USDOJ); or in relation to the AFP and FBI investigations of my father; or in relation to the potential prosecution of my father by the Commonwealth DPP during the period of 1 January 2000 to 9 April 2018.
My definition of "all communications, correspondence, requests and reports created by AUSTRAC would mean the inclusion of all emails, facsimiles, letters, requests, reports, AFP case notes, briefs of evidence, any legal advice created by AUSTRAC in relation to the Mutual Assistance made between the Commonwealth Attorney-General's Department and the US Department of Justice (USDOJ), or in relation to the AFP and FBI investigations of my father, or in relation to the potential prosecution of my father by the Commonwealth DPP, or any notice created by AUSTRAC in relation to the Interpol "RED NOTICE ALERTS" that were issued for my father in 2002 and 2008, and any copies of warrants or applications for warrants created by AUSTRAC in relation to my father.
I would also like to request that the decision-maker handling this FOI request consider that the names of all Government Officials contained in documents be disclosed. I am not requesting Government Officials telephone numbers or contact details be disclosed.
(1 May 2018 FOI Request)
60 On 21 June 2018, AUSTRAC wrote to the applicant and advised of its decision to refuse the applicant's 1 May 2018 FOI Request under s 24A of the FOI Act on the basis that the documents requested could not be found or do not exist (21 June 2018 AUSTRAC Decision).
61 On 3 August 2018, the applicant applied for an IC Review of the 21 June 2018 AUSTRAC Decision under s 54L of the FOI Act.
62 On 7 January 2019, the applicant provided submissions in the course of the IC Review of the 21 June 2018 AUSTRAC Decision. The applicant submitted that he was of the belief that additional documents within AUSTRAC and other government departments and agencies (that fell within the scope of his 1 May 2018 FOI Request) existed. The applicant submitted that he reached this conclusion because of his various FOI Requests and IC Review applications with other departments and agencies (some of which are Decisions 1 to 6 as set out in these submissions), documents he had been given access to referred to additional documents and in particular, an "AUSTRAC watch". The applicant submitted, inter alia:
Unfortunately, it appears that Mr McCormack failed to make sufficient internal enquiries within AUSTRAC (including failing to make specific enquiries with AUSTRAC Officers and/or staff members may have previously had involvement with the 'Matson matter' and/or some knowledge of where the 'AUSTRAC Reports' and 'AUSTRAC watch' documents in relation to myself and my father would be located); and further failed to conduct the necessary 'third party consultations with the AFP, the ATO, Centrelink, CDPP and the Attorney-General's Department ICCA whom are all confirmed to have been involved in the 'Matson matter' and were all aware of AUSTRAC's involvement.
63 On 22 January 2019, AUSTRAC made a decision in relation to a separate FOI Request of the applicant directed to the Australian Taxation Office (ATO), whereby the applicant sought access to all documents held by the ATO in relation to the applicant's father (ATO FOI Request). AUSTRAC refused the ATO FOI Request on the basis that the documents transferred to AUSTRAC by the ATO were documents not subject to the scope of the FOI Act pursuant to s 7 (Exemption of certain persons and bodies) of the FOI Act. The ATO FOI Request was transferred to AUSTRAC on 8 January 2019.
64 On 8 August 2019, the respondent sought further information from AUSTRAC in relation to the searches it undertook in response to the applicant's 1 May 2018 FOI Request.
65 On 14 August 2019, AUSTRAC provided submissions to the respondent in response to the respondent's request of 8 August 2019. In those submissions, AUSTRAC set out the relevant legislative framework in relation to information access powers and information sharing between agencies with respect to AUSTRAC information. AUSTRAC submitted, inter alia:
AUSTRAC is confident that if it did generate and provide documents of any kind to other agencies, records of that would have been kept, consistently with AUSTRRAC's standard record keeping procedure.
AUSTRAC notes the Applicant's argument that the ATO Documents make reference to the AFP having placed an "AUSTRAC watch" on the Applicant's financial activities, and that AUSTRA would have records in connection with that. AUSTRAC advises that whilst authorised agencies with access to AUSTRAC information (such as the AFP) may monitor the financial transactions of persons of interest, this does not in and of itself mean that AUSTRAC would have records of the authorised agencies' monitoring activities. In the present case, AUSTRAC confirmed that it does not have any record of the "AUSTRAC watch" the AFP is alleged to have placed on the Applicant.
66 On 27 August 2019, the respondent wrote to the applicant requesting further information required by AUSTRAC to reasonably identify the financial transactions sought by the applicant.
67 On 10 September 2019, the applicant provided the respondent with the information sought by it on 27 August 2019. The respondent provided this information to AUSTRAC on 17 September 2019.
68 On 23 October 2019, AUSTRAC advised the applicant of its further decision under the FOI Act, in relation to 21 June 2018 AUSTRAC Decision (Decision 5) and the 6 June 2018 AUSTRAC Decision (Decision 6) that:
(a) in relation to Roger Gregory Matson, Roger Gregory Fletcher, Roger Temple Bell , Baron Phillip Matson, Phillip Fletcher and Baron Bronstein, AUSTRAC refused the Applicant's 1 May 2018 FOI Request on the basis that the documents cannot be found or do not exist; and
(b) in relation to the Applicant's alias, Jah Baz, AUSTRAC identified one document within the scope of the request. AUSTRAC decided to release that document to the Applicant in part, with information irrelevant to the scope of the Applicant's request redacted under section 22(1)(a)(ii) of the FOI Act,
(together, the 23 October 2019 AUSTRAC Decision).
69 AUSTRAC confirmed that it intended for the 23 October 2019 AUSTRAC Decision to be a revised decision under s 55G of the FOI Act; however, due to an oversight, AUSTRAC furnished a fresh decision under the FOI Act to the applicant with internal review rights.
70 On 14 November 2019, the applicant applied for an internal review of the 23 October 2019 AUSTRAC Decision.
71 On 10 December 2019, AUSTRAC advised the applicant of its decision to refuse his application for an internal review of the 23 October 2019 AUSTRAC Decision (10 December 2019 AUSTRAC Decision).
72 On 16 December 2019, the applicant and the respondent had a teleconference whereby the applicant advised the respondent that he did not wish to lodge an application for an IC Review of the 10 December 2019 AUSTRAC Decision. The respondent therefore agreed to consider both the 23 October 2019 AUSTRAC Decision and the 10 December 2019 AUSTRAC Decision as submissions in support of the steps AUSTRAC undertook to find the documents falling within the scope of the IC Review of the 21 June 2018 AUSTRAC Decision (Decision 5) and the 6 June 2018 AUSTRAC Decision (Decision 6).
73 On 15 January 2020, the respondent sought further information from AUSTRAC in relation to the searches it undertook in response to the applicant's 1 May 2018 FOI Request.
74 On 28 January 2020, in response to the respondent's request on 15 January 2020, AUSTRAC submitted that:
AUSTRAC maintains back up data for extremely limited periods as a business continuity/disaster scenario measure. When documents are destroyed in accordance with archival scheduling, AUSTRAC can confirm it does not maintain back-ups of such data, which includes the 131 financial transactions already provided to the Applicant by the ATO.
75 On 19 February 2020, a delegate of the respondent wrote to the applicant to advise of the respondent's intention to recommend that the applicant's IC Review be finalised pursuant to s 54W(a)(i) of the FOI Act on the basis that the application for the IC Review lacked substance. The applicant was invited to provide reasons should he disagree with the proposed finalisation of his IC Review of the 21 June 2018 AUSTRAC Decision.
76 On 2 March 2020, a teleconference was held between the applicant and a delegate of the respondent to discuss the IC Review of the 21 June 2018 AUSTRAC Decision.
77 On 27 March 2020, a further teleconference was held between the applicant and a delegate of the respondent to discuss the IC Review of the 21 June 2018 AUSTRAC Decision.
78 On 15 April 2020, the respondent received submissions from the applicant in response to the respondent's letter dated 19 February 2020. Among other things, the applicant submitted:
As I mentioned during our teleconference on 2 March 2020, in my humble opinion I believe that there is sufficient Government Document evidence, namely in FOI decisions made by the Australian Federal Police (the AFP) and the Australian Taxation office (the ATO) to indicate that AUSTRAC reports were created in relation to my father during the period of 2000 to 2018. So I respectfully make the further submission that in consideration of the established fact that AUSTRAC reports must exist in relation to my father, it is axiomatic that other associated administrative documents must also have been created in relation to my father, on the same grounds as I mentioned above, namely that AUSTRAC reports cannot just appear out of thin air, without any prior authorisation or some kind of administrative process happening at AUSTRAC, and, again, the question that arises is who requested these AUSTRAC reports in relation to my father be created? As I stated above, was it the Australian Federal Police (the AFP), the Australian Taxation Office (the ATO), the Commonwealth Director of Public Prosecutions (the CDPP), the Attorney-General's Department (the AGD) or some other government department/agency or financial institution?
…
I appreciate that AUSTRAC has made submissions claiming that they have conducted reasonable searches for documents in relation to my father, and that no AUSTRAC documents exist, however, I respectfully draw your attention to the fact that prior to AUSTRAC locating the AUSTRAC reports in relation to myself (Jah Baz) as a result of IC review MR18/00599 (agency reference PIAT-1260), AUSTRAC had made an original FOI decision, and a subsequent internal review decision claiming that no documents existed in relation to myself. So, clearly there is some doubt as to the adequacy and professionalism of the AUSTRAC search process, and I believe the AFP and the ATO FOI decisions I have provided to the OAIC as evidence in support of my IC review submissions, which I believe establish beyond reasonable doubt that the AUSTRAC reports were created in relation to my father and that an AUSTRAC Watch was in place for my father, and that therefore it is axiomatic that other associated AUSTRAC documents in relation to my father must also exist.
79 The applicant further requested that:
(a) the Respondent formally request AUSTRAC to conduct fresh searches in good faith for additional AUSTRAC reports and other associated AUSTRAC administrative documents in relation to the Applicant's father and the AUSTRAC watch the Applicant submitted is said to be in place for his father;
(b) the Respondent formally request AUSTRAC to provide evidence of the searches requested (as set out at paragraph 82(a) above in a format similar to the table created by the Attorney-General's Department in their IC Review submissions furnished to the Applicant on 20 November 2019 (as set out above). The Applicant submitted this table should include details of initial searches that were conducted by AUSTRAC for their original and internal review decisions;
(c) the Respondent formally request AUSTRAC to consider making enquiries with the AFP in an attempt to locate the AUSTRAC reports and other associated AUSTRAC administrative documents that the Applicant submits were created in relation to his father. In the event ASUTRAC discovers that any relevant documents were destroyed or likely to be destroyed, the Applicant submits that he expects this to be confirmed in writing by AUSTRAC including providing written submissions and evidence confirming why and when the destruction of the AUSTRAC documents occurred; and
(d) the Respondent formally request AUSTRAC to consider making enquiries with the AFP in an attempt to locate the AUSTRAC reports and other associated AUSTRAC administrative documents that the Applicant submits were created in relation to his father, in circumstances where the AFP has specifically referred to AUSTRAC reports and an AUSTRAC watch the Applicant submits is in place in relation to his father.
80 On 26 May 2020, a delegate of the OIAC wrote to the applicant advising of her decision to decline to undertake the IC Review of the 21 June 2018 AUSTRAC Decision. The delegate advised, inter alia:
Based on the various submissions made by AUSTRAC and the evidence of the searches undertaken in response to your FOI Request, I am satisfied that all reasonable steps were taken to find documents you requested for the following reasons:
• I am satisfied that AUSTRAC's submissions explaining the locations searched, the search parameters used, and the evidence of search results provided by AUSTRAC show that it has taken comprehensive steps to locate documents by undertaking a reasonable search on a flexible and common sense interpretation of the request.
• there is no evidence before the OAIC to suggest that AUSTRAC has actual or constructive possession of documents within the scope of your request but has not released those documents to you.
• for those reasons, I would consider that it would be unreasonable to request that AUSTRAC undertake further searches for documents within the scope of your request.
• despite your submissions to the contrary, AUSTRAC has in its submissions dated 14 August 2019 and 15 January 2020 confirmed the practice of destruction and removal of documents in its possession, and, in my view, has adequately explained why and when the destruction of any documents in relation to your father occurred.
• I accept AUSTRAC's submissions in relation to the destruction of documents the scope of your request, namely that they have since been destroyed in accordance with archival scheduling. I do not require any further evidence to be satisfied that these documents have been destroyed, nor do I consider that it would be reasonable for AUSTRAC to provide further evidence in relation to this.
• I am satisfied that AUSTRAC's submissions dated 8 August 2019 adequately explain the legislative framework in relation to authorised agencies accessing AUSTRAC information to monitor the financial transactions of persons of interest and that this does not in and of itself mean that AUSTRAC would have records of these monitoring activities. I am also satisfied that AUSTRAC's submissions adequately explain why it holds no record of any "AUSTRAC watch" referred to in documents released to you by the AFP; and
• the right of access to documents under the FOI Act applies to documents of an agency that are subject to the FOI Act. In accordance with section 4(1) of the FOI Act, a "document of an agency" is defined as a document that is in the possession of the agency, whether created in the agency or received in the agency. AUSTRAC is not required to consult with other agencies in an attempt to locate documents that are not in its possession. I am therefore satisfied that it is not reasonable to request that AUSTRAC make enquiries with the AFP in this IC Review in an attempt to try and locate the AUSTRAC reports and AUSTRAC watch referred to by the AFP.
…
I have had regard to:
• AUSTRAC's decision and reasons for decision dated 21 June 2018.
• AUSTRAC's decision and reasons for decision dated 23 October 2019.
• AUSTRAC's internal review decision and reasons for decision dated 10 December 2019.
• the FOI Act, in particular sections 24A and 55D;
• the Guidelines issued by the Australian Information Commissioner under section 93A of the FOI Act which agencies must have regard in performing a function or exercising a power under the FOI Act (FOI Guidelines), in particular paragraphs [3.85] to [3.94];
• relevant case law, in particular De Tarle and Australian Securities and Investments Commission (Freedom of Information) [2015] AATA 770.
• the parties' submissions.
I am satisfied that the Department has taken all reasonable steps to find documents within the scope of your request and that documents do not exist or cannot be found. On that basis, I am satisfied that the matter is lacking in substance. In deciding whether to exercise the discretion or not to continue to undertake a review, I have considered … continuing to review this matter will not promote the objects of the FOI Act.
81 In relation to Decision 5, the substantive application was filed 77 days out of time.