Search issues on internal review
It was recently brought to our attention (which we appreciate) that the way we had written about internal review and search issues in several of our resources was confusing. We have updated those resources and hope they now provide a clearer and more consistent explanation of when an agency can deal with search issues as part of an internal review. We have also set an explanation of this complex technical issue out below.
The updated resources are:
- How to Conduct an Internal Review
- Search issues on external review
- Explaining your review rights – a guide for applicants
Dealing with search issues as part of an internal review
An applicant who has been given a reviewable decision can apply for an internal review of that decision (with some exceptions, set out in the How to Conduct an Internal Review guideline). If an applicant applies for internal review of a reviewable decision, and the agency accepts it, the agency can also deal with search issues raised by the applicant:
- if the search issues are part of the reviewable decision, for example where the agency has made a decision that documents are non-existent or unlocatable under section 52 of the RTI Act; or
- alongside the reviewable decision, for example where the applicant believes there are extra documents that the agency didn’t address in its decision.
Example one: an agency gives the applicant a decision that documents are unlocatable because they searched location A, B, C and couldn’t find them. The applicant seeks an internal review of the reviewable decision saying the agency should have searched in locations X, Y, and Z. The agency can deal with these search issues on internal review because they are part of the reviewable decision.
Example two: an agency gives the applicant a decision refusing access to three documents because they are exempt on legal privilege grounds. The applicant applies for internal review of the refusal of access decision, which is a reviewable decision, but also says there should be four documents, not three, and the agency didn’t find the other one. Because the applicant applied for review of a reviewable decision the agency can also deal with the search issue, even though it doesn’t relate specifically to the reviewable decision.
However, if no review of a reviewable decision has been sought, then issues of insufficient searching cannot be dealt with as an internal review.
Example one: an agency gives an applicant a decision refusing access to three documents because they are exempt on legal privilege grounds. The applicant accepts the refusal of access decision but says there should have been two more documents the agency didn’t find. Because they are not applying to have the reviewable decision reviewed, the agency cannot deal with the search issues as an internal review.
Example two: an agency gives an applicant full access to twenty documents, but the applicant believes there should be twice that many and gives the agency a list of places they should look for them. Because there is no reviewable decision, the agency cannot deal with the search issues as an internal review.
For more information, please contact the Enquiries Service on 07 3234 7373 (select option 1) or email@example.com. We also welcome and encourage feedback on our Guidelines and Information Sheets. If you see something you think we could do better or there’s a topic you’d like explained in an OIC resource, please let us know.