Application of sections 47(3)(e) and 52(1) RTI Act

Relevant considerations

1. Has there been refusal of access under sections 47(3)(e) and 52(1)(a) because 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.

Section 52(1)(a) of the RTI Act is silent as to how an agency or Minister can be satisfied that a document does not exist. To be satisfied a document does not exist, the agency or Minister must rely upon its particular knowledge and experience with respect to the following key factors:1

  • 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 the other legal obligations that fall to it);
  • the agency's practices and procedures (including but not exclusive to its information management approach); and
  • other factors including:
    • the nature and age of the requested document/s; and
    • the nature of the government activity the request relates to.

Section 52(1)(a) does not require the agency or Minister to conduct searches to be satisfied that the document does not exist.

However, when searches are conducted to substantiate a conclusion that there are reasonable grounds to be satisfied that a document does not exist, then the agency or Minister must take all reasonable steps to find the document.2

b) If searches are undertaken, have all reasonable steps been taken to find the document?

If an agency or Minister conducts searches to satisfy itself that a document does not exist under section 52(1)(a), the agency or Minister must take all reasonable steps to find the document.

Whether an agency or Minister has taken all reasonable steps to find the document will depend on the circumstances of the case.

The key factors outlined above may provide guidance as to what steps are necessary to satisfy this requirement.

To discharge its obligations, it may be necessary for the agency or Minister to seek additional information from external service providers or former officers.3 It may also be necessary to conduct both electronic and physical searches4 and further comprehensive searches.5

2. Has there been refusal of access under sections 47(3)(e) and 52(1)(b) where the document has been or should be in the agency's or Minister's possession?

a) Are there reasonable grounds for the agency or Minister to be satisfied that the requested document has been or should be in the agency's possession?

Whether there are reasonable grounds for the agency or Minister to be satisfied that the document has been or should be in the agency's possession will depend on the circumstances.

An agency or Minister's standard practice in reporting and recordkeeping may be sufficient to satisfy this requirement.6

b) Has the agency taken all reasonable steps to find the document?

Whether an agency or Minister has taken all reasonable steps to find the document will depend on the circumstances of the case.

The following factors may be relevant in determining whether all reasonable steps have been taken to find the document:7

  • 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 the other legal obligations that fall to it);
  • the agency's practices and procedures (including but not exclusive to its information management approach); and
  • other factors including:
    • the nature and age of the requested document/s; and
    • the nature of the government activity the request relates to.

To discharge its obligations, it may be necessary to seek additional information or contact staff with knowledge of the relevant documents for the agency or Minister to have taken all reasonable steps to find the document.9

  • 1 Whittaker and Public Service Commission (Unreported, Queensland Information Commissioner, 23 November 2010) at paragraph 15 adopting the key factors identified by the Information Commissioner when considering section 28A of the FOI Act (repealed) in PDE and the University of Queensland (Unreported, Queensland Information Commissioner, 9 February 2009) at paragraph 37. [up]
  • 2 Whittaker and Public Service Commission (Unreported, Queensland Information Commissioner, 23 November 2010) at paragraph 16 adopting the principle identified by the Information Commissioner when considering section 28A of the FOI Act (repealed). [up]
  • 3 Whittaker and Public Service Commission (Unreported, Queensland Information Commissioner, 23 November 2010) at paragraph 21. [up]
  • 4 Master N and Department of Education and Training (Unreported, Queensland Information Commissioner, 22 December 2010) at paragraph 24. [up]
  • 5 Whittaker and Public Service Commission (Unreported, Queensland Information Commissioner, 23 November 2010) at paragraph 21. [up]
  • 6 Pryor and Logan City Council (Unreported, Queensland Information Commissioner, 8 July 2010) at paragraph 39. [up]
  • 7 Pryor and Logan City Council (Unreported, Queensland Information Commissioner, 8 July 2010) at paragraphs 21 and 44. [up]
  • 8 Pryor and Logan City Council (Unreported, Queensland Information Commissioner, 8 July 2010) at paragraph 45. [up]

Last updated: March 16, 2012