Overview of Section 28A FOI Act

Section summary

Under section 28A of the FOI Act, access may be refused to a document that does not exist or cannot be located.

A document will be nonexistent or unlocatable under section 28A of the FOI Act if the agency or Minister is satisfied that:

• the document does not exist; or
• the document has been or should be in the agency or Minister's possession and all reasonable steps have been taken to find the document but the document cannot be found.

Sections 28A(1) and (2) of the FOI Act are mutually exclusive; the provisions cannot be relied upon simultaneously.¹

Background

Section 28A was inserted into the FOI Act by the Freedom of Information and Other Legislation Amendment Act 2005 (Qld) to provide a statutory basis for an agency or Minister to refuse access to documents in situations where the application is for documents which do not exist or cannot be located.

The explanatory notes² to the amending bill state that the provision was enacted in response to finding 96 of the Legal, Constitutional and Administrative Review Committee Report 32, which recommended an equivalent to section 24A of the Freedom of Information Act 1982 (Cth) be inserted in the Queensland legislation. Nonetheless, in PDE and University of Queensland³ the Information Commissioner was satisfied the ordinary meaning of section 28A was materially different to the Commonwealth provision.

Other relevant FOI Act sections

Section 88 FOI Act
Under section 88(2) of the FOI Act the Information Commissioner has power to compel an agency or Minister to conduct further searches for a document.

¹ PDE and University of Queensland (Unreported, Queensland Information Commissioner, 9 February 2009) at paragraph 49.
² Explanatory notes for the Freedom of Information and Other Legislation Amendment Bill 2005 (Qld).
³ PDE and University of Queensland (Unreported, Queensland Information Commissioner, 9 February 2009) at paragraphs 50 – 54.