Application of Section 28A FOI Act

Relevant considerations

1. Refusal of access under section 28A(1) of the FOI Act, where the document does not exist.

a) Is the agency or Minister satisfied the document does not exist?

Access to a document may be refused if the agency or Minister is satisfied the document does not exist.4

Section 28A of the FOI Act is silent about how an agency or Minister can be satisfied a document does not exist.5 The Information Commissioner previously considered that for an agency to be satisfied a document does not exist, it is necessary for the agency to rely upon its particular knowledge and experience with respect to the following key factors:6

  • the administrative arrangements of government;
  • the agency structure;
  • the agency's functions and responsibilities (particularly with respect to the legislation for which it has administrative responsibility and other legal obligations that fall to it)
  • the agency's administrative practices and procedures (including but not exclusive to its information management approaches)
  • other factors including:
    • the nature and age of the document sought
    • the nature of the government activity that the FOI request relates to.

The Information Commissioner has previously considered whether the document was created, to determine whether the document exists.7

When proper consideration is given to the above factors and an agency or Minister is satisfied that the document does not exist, it is not necessary to conduct searches.

The construction of section 28A(1) does not preclude an agency or Minister from using searches as a means to satisfy itself that a document does not exist.8 However, if an agency or Minister conducts searches to substantiate a conclusion that a document does not exist, the agency or Minister must take all reasonable steps to locate the documents.9

b) Have all reasonable steps been taken to find the document?

Due to the proximity of the subsections, the Information Commissioner was satisfied the same test for ‘all reasonable steps' in section 28A(2) of the FOI Act should be applied in relation to section 28A(1), where the agency or Minister has undertaken searches to satisfy itself that the document does not exist.10

c) Is the agency or Minister required to search a backup system before refusing access?

Section 28A(4) outlines circumstances where an agency or Minister may be required to search a backup system for a document, before refusing access under section 28A(1). That is if:

  • the document is a document required to be kept under the Public Records Act 2002 (Qld);
  • the document is not a document that could lawfully have been disposed of under that Act; and
  • the agency or Minister considers the document has been kept in and is retrievable from the back up system.

2. Refusal of access under section 28A(2) of the FOI Act, where the document has been or should be in the agency or Minister's possession

a) Is the agency or Minister satisfied the document has been, or should be in its possession?

Section 28A of the FOI Act is silent about how an agency or Minister can be satisfied a document exists.11 The Information Commissioner previously considered that for an agency to be satisfied a document has been, or should be, in its possession, it is necessary for the agency to rely upon its particular knowledge and experience with respect to the following key factors:12

  • the administrative arrangements of government;
  • the agency structure;
  • the agency's functions and responsibilities (particularly with respect to the legislation for which it has administrative responsibility and other legal obligations that fall to it)
  • the agency's administrative practices and procedures (including but not exclusive to its information management approaches)
  • other factors including:
    • the nature and age of the document sought
    • the nature of the government activity that the FOI request relates to.

If the agency or Minister is satisfied the relevant document has been, or should be, in its possession, the agency or Minister must take all reasonable steps to find the document.13

b) Have all reasonable steps been taken to find the document?

Whether an agency or Minister has taken all reasonable steps to find the document will depend on the particular circumstances of the case, with reference to the access application, information provided by the applicant as well as the following key factors:14

  • the agency or minister's particular knowledge or experience15 with respect to the administrative arrangements of government;
  • the agency structure;
  • the agency's functions and responsibilities (particularly with respect to the legislation for which it has administrative responsibility and other legal obligations that fall to it);
  • the agency's administrative practices and procedures (including but not exclusive to its information management approaches); and
  • other factors including:
    • the nature and age of the document sought; and
    • the nature of the government activity that the FOI request relates to.

In Stiller and Department of Transport,16 the Information Commissioner found it relevant to consider the following further factors:

  • the date the documents may have been created and the personnel who may have created them;
  • the regulatory obligations and/or aspect of service delivery that might be involved;
  • approval processes and delegations in relation to the document or service in respect of which documents are sought;
  • the agency's record keeping practices; including
    • where and in what form the documents sought may be stored; o multiple locations; and
    • requirements under the Public Records Act 2002 (Qld) retention and disposal regimes.

It may be necessary for the agency or Minister to seek additional information to inform the search process, such as examining documents already identified or conducting discussions with officers that may have dealt with the subject matter at the relevant time.17

4 Section 28A(1) of the FOI Act.
5 PDE and University of Queensland (Unreported, Queensland Information Commissioner, 9 February 2009) at paragraph 35.
6 PDE and University of Queensland (Unreported, Queensland Information Commissioner, 9 February 2009) at paragraphs 34 - 38.
7 PDE and University of Queensland (Unreported, Queensland Information Commissioner, 9 February 2009) at paragraph 75.
8 PDE and University of Queensland (Unreported, Queensland Information Commissioner, 9 February 2009) at paragraph 35.
9 PDE and University of Queensland (Unreported, Queensland Information Commissioner, 9 February 2009) at paragraphs 34 and 47; Shepherd and Department of Housing, Local Government and Planning (1994) 1 QAR 464.
10 PDE and University of Queensland (Unreported, Queensland Information Commissioner, 9 February 2009) at paragraph 49.
11 PDE and University of Queensland (Unreported, Queensland Information Commissioner, 9 February 2009) at paragraph 35.
12 PDE and University of Queensland (Unreported, Queensland Information Commissioner, 9 February 2009) at paragraphs 34 - 38. 
13 Section 28A(2) of the FOI Act.
14 Stiller and the Department of Transport (Unreported, Queensland Information Commissioner, 11 February 2009) at paragraphs 82-83.
15  PDE and University of Queensland (Unreported, Queensland Information Commissioner, 9 February 2009) at paragraph 37: the knowledge and experience required will vary between agencies and access applications. The knowledge and experience required in particular cases will not always rest with the FOI decision maker.
16 Stiller and the Department of Transport (Unreported, Queensland Information Commissioner, 11 February 2009) at paragraphs 82-83. [up]
17 Stiller and the Department of Transport (Unreported, Queensland Information Commissioner, 11 February 2009) at paragraph 83.

Last updated: March 5, 2012