Key published decisions applying Section 28A FOI Act

PDE and University of Queensland (Unreported, Queensland Information Commissioner, 9 February 2009)

The applicant sought access to a 'results form' of a specified course at the University of Queensland (UQ). UQ disclosed a copy of the final results form to the applicant, however, on internal review the applicant contended that the form was not complete because it was not signed by the relevant members of staff. UQ refused access under section 28A(1) of the FOI Act on the basis that the document was never created and therefore did not exist. The applicant sought external review on the basis of sufficiency of search rather than amendment.

The Information Commissioner considered the interpretation of section 28A of the FOI Act: [34]

Sections 28A(1) and (2) of the FOI Act address two different scenarios faced by agencies and Ministers from time to time in dealing with FOI applications: circumstances where the document sought does not exist and circumstances where a document sought exists (to the extent it has been or should be in the agency's possession) but cannot be located. In the former circumstance, an agency or Minister is required to satisfy itself that the document does not exist. If so satisfied, the agency or Minister is not required by the FOI Act to carry out all reasonable steps to find the document. In the latter circumstance an agency or Minister is required to satisfy itself that the document sought exists (to the extent that it has been or should be in the agency's possession) and carry out all reasonable steps to find the document before refusing access.

Are there reasonable grounds for UQ to be satisfied the relevant document does not exist?

Section 28A of the FOI Act is silent on how an agency or Minister can satisfy itself about the existence of a document. However, the Information Commissioner 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: [37]

  • 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 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.18 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 document. [35, 38]

Here, the Information Commissioner considered it necessary to determine whether the document was ever created, by identifying: [75]

  • the process for creating and processing the results form;
  • UQ's usual administrative process for authorising amended results, prior to the results being finalised; and
  • whether there was any evidence to suggest there had been any deviation from the usual process, and if so, to investigate the matter further with the relevant personnel and possibly undertake relevant searches.

The Information Commissioner was satisfied the requested document did not exist because it was not created. UQ was therefore not required to conduct searches.

Accordingly, UQ could refuse access to the relevant document under section 28A(1) of the FOI Act on the basis that it did not exist.

Have all reasonable steps been taken to find the document?

Due to the proximity of subsections 28A(1) and (2), the Information Commissioner was satisfied the 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. [49]

Having regard to the construction of the provision, the Information Commissioner considered the appropriate test is whether an agency has taken 'all reasonable steps' to locate the document.19

Stiller and Department of Transport (Unreported, Queensland Information Commissioner, 11 February 2009

The applicant sought access to documents concerning his motor vehicle registration.

The applicant was provided with some relevant documents and on internal review, the Department of Transport (Department) refused access to additional documents under sections 28A(1) and (2) of the FOI Act on the basis that no further documents existed or could be located.

Is the agency satisfied the document does not exist?

The Information Commissioner considered that the key factors identified in PDE are relevant in determining whether the agency can be satisfied as to the existence of documents. [51] As the Department relied on searches to substantiate its claim that no further documents existed, the Information Commissioner considered the Department must take all reasonable steps to locate the documents. [80]

Have all reasonable steps been taken to find the document?

In determining whether the Department has taken all reasonable steps to locate the document, the Information Commissioner was satisfied it is necessary to consider the circumstances of the case with reference to: [82]

  • the key factors identified in PDE;
  • the date the documents may have been created and the personnel who may have been responsible for creating them;
  • the regulatory obligations and/or aspect of service delivery that might be involved;
  • departmental 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
    • multiple locations; and
    • requirements under the Public Records Act 2002 (Qld) including retention and disposal regimes.

Further, 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. [83]

The Information Commissioner considered the locations searched, the reasons the locations were identified for searches and how the identified locations were searched and was satisfied that all reasonable steps had been taken to locate the documents.

Accordingly, the Department was entitled to refuse access to relevant documents under sections 28A(1) and (2) of the FOI Act.

Minogue and Department of Health (Unreported, Queensland Information Commissioner, 24 June 2009)

The applicant sought access to personnel files, human resources files and department files for a particular payroll number. Relevant documents were provided to the applicant, however, on internal review, the Department of Health (QH) refused access to documents under section 28A(2) of the FOI Act on the basis that no further documents could be located.

On external review, the applicant submitted that further documents existed, namely emails between three QH employees and computer files used by an officer.

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

Having regard to the factors identified in PDE, the Information Commissioner was satisfied the relevant documents had been, or should be, in QH's possession. [61]

Have all reasonable steps been taken to find the document?

Emails

In relation to emails documents, QH submitted that searches were performed for all documents relating to the access application, that on internal review two QH employees named by the applicant were requested to perform further searches of their email accounts and each advised they held no further emails. The third QH employee named by the applicant no longer worked at QH and another appropriate staff member was requested to search emails held by the former employee, however no further emails were located. QH provided copies of the search requests sent to relevant areas of the Townsville District Hospital as well as copies of emails sent to individuals requesting searches. [66,67]

The Information Commissioner was satisfied that all reasonable steps had been taken to locate the emails as each of the employees named by the applicant were requested to perform further searches. [68] Accordingly, QH was entitled to refuse access to further emails under section 28A(2) of the FOI Act on the basis that the emails could not be located.

Computer files

The applicant submitted that further documents existed in a password protected computer file on an officer's computer. [69]

In relation to the documents on the computer file, QH submitted that the only places where files were created or used by the officer were the network and her personal hard drive and that searches were conducted in both of these locations. Further, QH stated that, as a result of the District's upgrade process, all computers which would have been used by the officer had been replaced, and the hard drives from the old computers have been removed and wiped of data. [70]

Accordingly, the Information Commissioner was satisfied that all reasonable steps were taken to locate the documents. [73]

The applicant expressed concern that QH upgraded its computers while the search for his documents was ongoing. However, QH contended the upgrade occurred before the applicant's access request was made. [72]

The Information Commissioner was satisfied QH was entitled to refuse access to the emails and computer files under section 28A(2) of the FOI Act on the basis that all reasonable steps to locate the documents had been undertaken and the documents could not be found. [74]

18 PDE and University of Queensland (Unreported, Queensland Information Commissioner, 9 February 2009) at paragraph 35.
19 Rather than the approach to that point adopted in FOI administration of demonstrating 'reasonable search efforts in all the circumstances of the review', as originally set down in Shepherd and Department of Housing, Local Government and Planning (1994) 1 QAR 464.

Last updated: March 5, 2012